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Friday, December 29, 2017

As short term rentals become more popular, local governments have had to rethink their current residential use restrictions to address this new use. Many local governments have relied on their "exclusionary" zoning ordinances that permit only those uses expressly listed in the zoning district as permitted or special/conditional uses to prohibit short term rentals. Others have adopted amendments to their zoning ordinances to expressly restrict and/or regulate short term rentals. Morgan County's application of its zoning regulations to a short term rental was recently the subject of a legal challenge in May v. Morgan County, (11th Cir. Dec. 21, 2017), which upheld the county's ban on short term rentals in single family dwellings.

In 2010, the county enacted a ban of short term rentals in single family homes, defined as any rental for less than 30 consecutive days. In 2011, the county cited May, the owner of a lakefront single family home for violating that ordinance. She subsequently filed a civil rights lawsuit, arguing that her short term rental use was "grandfathered" under the zoning ordinance since she had started renting her home in 2008, 2 years prior to the county's ban on these rentals. Her first lawsuit (filed in state court) was dismissed because she failed to exhaust her administrative remedies by seeking zoning relief and that her challenge to the short-term rental ban was time-barred because she didn't bring her lawsuit within 30 days of adoption of the ban.

After her first case was dismissed, she filed a rezoning application with the county and a request that the county revoke the ban on short term rentals. After both applications were denied, she filed a second lawsuit, this time in federal court, arguing she had a grandfathered right to rent out her home and that the county violated her "grandfathered constitutional rights," which she claimed were protected civil rights.

The case made its way to the 11th Circuit Court of Appeals, which dismissed her claims based on the "Rooker-Feldman" doctrine which states that federal courts do not have jurisdiction to review state court decisions. Here, the state court had already decided her claims against enforcement of the county's short-term rental ban and she could not attempt to relitigate those claims in federal court.